United States v. Tobias Soto-Melchor ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 7 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10020
Plaintiff-Appellee, D.C. No.
1:18-cr-00142-LJO-SKO-2
v.
TOBIAS SOTO-MELCHOR, AKA Tobias MEMORANDUM*
S. Melchor, AKA Tobias Soto Melchor,
AKA Tobias Soto, AKA Tobias Melchor
Soto, AKA Tovia Soto, AKA Tobias Soto
Melchor, AKA Tobias Sotomelchor, AKA
Soto Tobias, AKA Melchor Tobias Soto,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding
Argued and Submitted June 17, 2021
San Francisco, California
Before: SCHROEDER, M. SMITH, and VANDYKE, Circuit Judges.
A jury convicted Defendant-Appellant Tobias Soto-Melchor of three counts
related to the distribution of methamphetamine. Before trial, Soto-Melchor
requested to substitute his appointed counsel with a new lawyer that he would retain.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court denied his requests, which Soto-Melchor appeals. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Because the parties are familiar with the
facts, we do not recount them here, except as necessary to provide context to our
ruling. We AFFIRM the decision of the district court.
“The [d]istrict [c]ourt’s denial of [a defendant’s] request can be analyzed
either as the denial of a continuance or as the denial of a motion to substitute counsel.
A [d]istrict [c]ourt’s primary reasons for not allowing a defendant new counsel may
determine which analysis to apply.” United States v. Nguyen, 262 F.3d 998, 1001–
02 (9th Cir. 2001). Like in Nguyen, “[w]hile no formal motion for a continuance
was made” by Soto-Melchor, the district court relied on a finding that a continuance
would be required if it granted Soto-Melchor’s motion for substitution. Id. at 1002.
“Therefore, we will consider the denial under both standards.” Id.“We review the denial of a motion for a continuance for abuse of discretion.”
United States v. Turner, 897 F.3d 1084, 1101 (9th Cir. 2018).
Where a denial of a continuance implicates a defendant’s Sixth
Amendment right to counsel, we consider the following factors: (1)
whether the continuance would inconvenience witnesses, the court,
counsel, or the parties; (2) whether other continuances have been
granted; (3) whether legitimate reasons exist for the delay; (4) whether
the delay is the defendant’s fault; and (5) whether a denial would
prejudice the defendant.
Id. at 1102 (internal quotation marks omitted).
Applying these factors, we hold that the district court did not abuse its
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discretion in refusing to grant a continuance. First, the district court determined that
the court would not be able to schedule a new trial date for Soto-Melchor, at least in
part because of the heavy caseload in the Eastern District of California. Second, the
district court had already granted two continuances. Third, legitimate reasons did
not exist for the delay because, as Soto-Melchor explained to the court, his
disagreements with his attorney pertained to his attorney’s accurate description of a
plea deal offered by the Government and false accusations that his attorney was
bolstering a co-defendant at Soto-Melchor’s expense. Fourth, and similarly, any
delay would have been the fault of Soto-Melchor, as Soto-Melchor’s reasons for
requesting a new attorney were based on unreasonable or unjustified disagreements
with his appointed counsel. Fifth, the denial of the continuance did not prejudice
Soto-Melchor, as the Government’s plea offer remained available, and Soto-
Melchor’s appointed counsel did not indicate that he was unprepared to go to trial
on the original trial date. See id. Therefore, the district court did not abuse its
discretion in denying Soto-Melchor’s request to substitute counsel as a motion for a
continuance.
Reviewing Soto-Melchor’s request as a motion for substitution, we again
apply an abuse of discretion standard of review. See United States v. Reyes-Bosque,
596 F.3d 1017, 1033 (9th Cir. 2010). “In general, a defendant who can afford to hire
counsel may have the counsel of his choice unless a contrary result is compelled by
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purposes inherent in the fair, efficient and orderly administration of justice.” United
States v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010) (internal quotation marks
omitted). However, a district court has “wide latitude in balancing the right to
counsel of choice against the needs of fairness and against the demands of its
calendar.” United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (citations
omitted). Therefore, when “the substitution would cause significant delay,” Rivera-
Corona, 618 F.3d at 979, we apply a three-part framework, see United States v.
Torres-Rodriguez, 930 F.2d 1375, 1380 & n.2 (9th Cir. 1991), overruled on other
grounds by Bailey v. United States, 516 U.S. 137 (1995); Rivera-Corona, 618 F.3d
at 980. “[W]e consider (1) the timeliness of the substitution motion and the extent
of resulting inconvenience or delay; (2) the adequacy of the district court’s inquiry
into the defendant’s complaint; and (3) whether the conflict between the defendant
and his attorney was so great that it prevented an adequate defense.” Rivera-Corona,
618 F.3d at 978 (citing United States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th
Cir. 2009)).
Soto-Melchor’s first request to substitute counsel occurred only four weeks
before trial, and the district court determined that a significant continuance would
have been necessary because: (1) Soto-Melchor did not have an attorney who would
be prepared in time for the set trial date; and (2) the district court would not be able
to set a new trial date in the near future. Even attorneys who were contacted by Soto-
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Melchor expressed reservation about the ability to proceed to trial on the appointed
date. Next, the district court’s inquiry was extensive. That court held two ex parte
hearings and “asked specific follow-up questions to determine the extent of the
conflict.” Reyes-Bosque, 596 F.3d at 1034. Finally, the conflict between Soto-
Melchor and his appointed counsel was not “so great that it prevented an adequate
defense.” Rivera-Corona, 618 F.3d at 978. The record indicates that Soto-Melchor
and his attorney continued to communicate. Cf. United States v. Moore, 159 F.3d
1154, 1159–60 (9th Cir. 1998) (describing relationships where attorneys and their
clients refused to speak to each other and threatened each other). Soto-Melchor’s
conflict with his appointed counsel “appears to [have] arise[n] out of general
unreasonableness or manufactured discontent.” United States v. Smith, 282 F.3d
758, 764 (9th Cir. 2002) (internal quotation marks omitted). As described above,
Soto-Melchor came to distrust his attorney only because that attorney was accurately
describing the possible punishment pursuant to the Government’s offer of a plea
deal. Evaluating these three factors, we conclude that the district court did not abuse
its discretion in denying Soto-Melchor’s request to substitute counsel.
AFFIRMED.
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